The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property

By Brewster, Rachel | Chicago Journal of International Law, Summer 2011 | Go to article overview

The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property


Brewster, Rachel, Chicago Journal of International Law


Abstract

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules available is weak. The TRIPS Agreement relies on the existence of domestic remedies to enforce intellectual property rules. This reliance is unwarranted, however, because states are explicitly exempted from any obligation to allocate significant resources (i.e. police or prosecutors) to enforce these laws. Nor are courts or judicial authorities required to order the remedies that the TRIPS Agreement gives them the authority to provide. The result is that states can set their effective level of intellectual property enforcement at a level well below that of developed states with similar laws and enforcement institutions. Second, this article highlights the beneficial effects that trade retaliation in intellectual property can have for developing countries. The possibility of retaliating by suspending the TRIPS Agreement's obligations gives developing states much greater leverage to enforce other trade obligations against developed states.

Table of Contents

I. Introduction ................................................................................................................. 2

II. The TRIPS Agreement ............................................................................................. 8

A. The Negotiation of the TRIPS Agreement ....................................................... 8

B. TRIPS as Global Intellectual Property Policy ................................................. 14

III. Enforcing the TRIPS Agreement: Domestic Law Requirements .................. 17

A. The Requirements of the TRIPS Agreement ................................................. 19

1. Differences in enforcing a non-discrimination rule and a minimum standard rule ......................................................................................................... 19

2. The requirements in the TRIPS text ............................................................ 21

B. International Review of TRIPS Enforcement Obligations .......................... 26

C. Private Enforcement Through Civil Remedies .............................................. 32

D. Conclusions on the Domestic Enforcement of TRIPS ................................ 34

IV. TRIPS as Retaliation ............................................................................................. 35

A. Collective Sanctioning Regime ......................................................................... 36

B. The Use of Intellectual Property in Sanctions ................................................ 40

1. Credible sanctions ........................................................................................... 41

2. More effective sanctions ................................................................................ 43

C. Intellectual Property Retaliation as "Piracy" ................................................... 46

1. Targeting Intellectual Property Rights-holders ........................................... 46

2. Piracy as Theft ................................................................................................. 48

D. Political Economy Issue: Linking TRIPS and Agriculture .

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The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property
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